Minimum Competence - Daily Legal News Podcast
Minimum Competence
Fri 11/17 - Wall Street Firms Build DEI Practices, Louisville Breonna Taylor Mistrial, Macy*s PAGA to 9th Circuit and CA Bar Passes AI Guidelines

Fri 11/17 - Wall Street Firms Build DEI Practices, Louisville Breonna Taylor Mistrial, Macy*s PAGA to 9th Circuit and CA Bar Passes AI Guidelines

We have Wall Street firms building out DEI practices, a mistrial in Louisville civil rights trial, Macy*s brings PAGA back to 9th circuit, and the CA bar passes guidelines for use and billing of AI.

Richard Nixon as a crook, pencil sketch.

On this day in legal history, November 17, 1973, 50 years ago, President Richard Nixon declared he was not a crook. 

On November 17, 1973, a significant event unfolded in the annals of American legal and political history and carried with it major cultural significance. President Richard Nixon, amidst the escalating Watergate scandal, delivered a televised Q&A session with Associated Press managing editors at Disney's Contemporary Resort near Orlando, Florida. In this session, Nixon adamantly declared, "I'm not a crook," in response to mounting allegations concerning his involvement in the Watergate break-in and subsequent cover-up.

Of course, no one was accusing him of being a crook – he was accused of abusing and misusing his power as president. So it was a bit like Hannibal Lecter vehemently denying having ever been a tax evader.

This statement quickly became one of the most infamous quotes in American political discourse, symbolizing Nixon's defensive posture amid the scandal. The Watergate scandal itself, which began with a break-in at the Democratic National Committee headquarters at the Watergate office complex in June 1972, had by late 1973 evolved into a major political crisis. Nixon's administration was accused of obstruction of justice, abuse of power, and contempt of Congress, leading to an erosion of public trust in the presidency.

Nixon's emphatic denial on November 17 was part of his broader strategy to maintain political support and manage the narrative surrounding the investigation. However, the statement did little to quell the suspicions and investigative efforts surrounding him. In fact, it heightened public interest and media scrutiny, as it contrasted sharply with the growing evidence of wrongdoing within his administration.

This moment marked a turning point in the Watergate scandal. Following Nixon's declaration, the investigation intensified, eventually leading to the revelation of the Nixon White House's involvement in the scandal. The event underscored the complex interplay between legal proceedings, political power, and public perception.

The significance of Nixon's statement in the context of legal history is profound. It serves as a reminder of the importance of integrity and accountability in public office and highlights the role of the legal system in upholding these principles. The fallout from this declaration and the subsequent unravelling of the Watergate scandal ultimately led to Nixon's resignation on August 9, 1974, making him the only U.S. president to resign from office.

In retrospect, Nixon's "I'm not a crook" assertion remains a pivotal moment that continues to influence American political and legal discourse. It serves as a case study in legal ethics, presidential power, and the pivotal role of the media in uncovering truth. This event, thus, stands as a landmark in legal history, exemplifying the intricate relationship between law, politics, and the pursuit of justice in American society.

Following the Supreme Court's ban on affirmative action in college admissions, Wall Street law firms like Simpson Thacher and Paul Weiss have established new practices focusing on diversity, equity, and inclusion (DEI). These practices emerged in response to client demands for guidance on racial equity audits and the legal sustainability of DEI initiatives post the Supreme Court decision. Loretta Lynch, a leader of the new practice at Paul Weiss, noted the increase in client inquiries about the effectiveness of DEI programs.

This trend represents a second wave of DEI practice development, spurred initially by the aftermath of George Floyd's killing in 2020. Now, corporations seek to defend their DEI programs against conservative challenges, highlighted by the Supreme Court's decision in Students for Fair Admissions v Harvard, which disallowed race-based criteria in college admissions. Conservative groups, like America First Legal and Do No Harm, have been actively challenging corporate DEI initiatives, leading more law firms to form specialized DEI practices.

Key figures like former US Attorney General Lynch have been involved in defending such programs, including Pfizer's recruitment initiative. Paul Weiss, for example, recently announced its DEI strategic advisory practice with high-profile members, reflecting a continued corporate interest in maintaining diverse workforces amidst legal and social debates.

Simpson Thacher & Bartlett and McGuireWoods have also established their DEI practices, recognizing the growing legal complexities surrounding DEI in corporate environments. Bonnie Levine, a founder of Verse Legal, emphasized the need for legal advice as businesses continue to prioritize DEI.

The rise of DEI practices in law firms mirrors the broader legal and corporate landscape's evolving dynamics, where firms not only offer specialized DEI services but also face similar DEI-related legal challenges as their clients. Despite the potential for conflicts of interest, there is a general consensus on the necessity of these services, highlighting the importance of multiple avenues of legal counsel in the ever-changing legal field of DEI.

Wall Street Firms Build Diversity Practices After Court Decision

A mistrial was declared in the federal civil rights trial of Brett Hankison, a former Louisville, Kentucky, police officer charged in connection with the 2020 death of Breonna Taylor. The jury could not reach a unanimous verdict, leading U.S. District Judge Rebecca Grady Jennings to declare the mistrial. Hankison faced charges of using excessive force during the raid on Taylor's apartment, where he allegedly fired 10 bullets without striking anyone.

Previously, Hankison was acquitted in a state court trial on charges of endangering Taylor's neighbors during the same raid. He was the only one among the three officers who fired their weapons to face criminal charges. The other two officers were not indicted by a Kentucky grand jury, as Kentucky's Attorney General Daniel Cameron did not recommend charges against them.

Breonna Taylor's death, along with the deaths of George Floyd and Ahmaud Arbery, triggered widespread protests and a call for racial justice in 2020. Taylor, a 26-year-old emergency medical technician, was asleep in her apartment during a no-knock raid by police, who were investigating a drug case involving her ex-boyfriend.

During the raid, Taylor's boyfriend, thinking it was a break-in and claiming he did not hear the police identify themselves, fired a shot that wounded an officer. The police returned fire, fatally shooting Taylor. In addition to Hankison, three other former Louisville police officers were charged with including false information in the affidavit for the raid warrant. One of these officers, Kelly Goodlett, has pleaded guilty, while Joshua Jaynes and Sergeant Kyle Meany are awaiting trial.

The Department of Justice is now considering its options regarding a potential retrial for Hankison.

Mistrial declared for Kentucky officer charged in Breonna Taylor killing | Reuters

The Ninth Circuit Court of Appeals is revisiting the issue of arbitration in cases involving California's Private Attorneys General Act (PAGA), which permits employees to file lawsuits on behalf of the state for labor law violations. The case at hand involves a subsidiary of Macy's Inc., contesting a lower court's decision to send both individual and representative claims for alleged unpaid overtime and wage violations to arbitration. This follows a similar case involving a Lowe’s Home Centers LLC worker, where individual claims were arbitrated and representative claims dismissed.

The core issue is whether PAGA allows workers to pursue class-like representative claims in court despite agreements to arbitrate individual disputes. PAGA authorizes employees to enforce California Labor Code provisions and bring claims on behalf of other workers.

The U.S. Supreme Court, in Viking River Cruises, Inc. v. Moriana (2022), ruled that individual PAGA claims can be subject to arbitration, but dismissed representative claims in such scenarios. Justice Sonia Sotomayor noted that the interpretation of this matter should be left to California’s courts.

Despite the U.S. Supreme Court's stance, many California courts have opposed the notion of dismissing representative PAGA claims when individual claims are arbitrated. The California Supreme Court's ruling in Adolph v. Uber Technologies, Inc. further supported this view, asserting that workers retain the right to litigate representative claims even if their individual claims are arbitrated.

In the current case, Macy's argues that the lower court’s decision to send both individual and representative claims to arbitration contradicts the Viking River ruling. However, Yuriria Diaz, the employee, contends that such an arbitration order isn’t immediately appealable. The impact of the Adolph decision by the California Supreme Court on this case is yet to be fully assessed, as the Ninth Circuit has not ordered additional briefings on it.

The case, Diaz v. Macy's West Stores, Inc., will be heard by a panel including Ninth Circuit Judges Jay Bybee, Kenneth Lee, and Third Circuit Judge Michael Fisher. Both parties' lawyers have refrained from commenting ahead of the oral arguments scheduled for November 17, 2023. This case has the potential to radically upset the current status quo vis a vis labor and management. 

Macy’s Case Brings PAGA Arbitration Issue Back to Ninth Circuit

The California Bar has set new guidelines for lawyers using artificial intelligence, positioning the state as a leader in ethical guidance for AI in legal practice. According to Erika Doherty, program director for the bar’s Office of Professional Competence, this initiative is the first AI-specific regulation approved by a legal regulatory agency. The guidelines advise lawyers to disclose their use of generative AI to clients and to avoid charging hourly fees for time saved using AI tools. They also emphasize the need for human oversight of AI-generated content to prevent inaccuracies and bias. This step is seen as an interim measure while more comprehensive rules are developed, including potential revisions to the definition of unauthorized legal practice in the context of AI. The committee highlighted AI's potential to bridge the justice access gap, but cautioned against the risks of false information from AI outputs for self-represented individuals. Similarly, the Florida Bar's ethics committee has proposed guidelines regarding client consent and oversight for AI use, with these recommendations open for public comment until January.

California Bar Passes Disclosure and Billing Guidelines for AI

Minimum Competence - Daily Legal News Podcast
Minimum Competence
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